Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices.

The next case is Loper Bright Enterprises.  This case involves what has been a recurring theme over multiple terms — Chevron deference.  To understand Chevron deference, you need to understand history and how Congress and the Executive branch interact.  For the most part, Congress writes broad statues granting powers to administrative agencies (e.g., Environmental Protection Agency, Food and Drug Administration, Securities and Exchange Commission).  These statutes are by necessity somewhat vague to allow the administrative agency the opportunity to be make adjustments as new issues arise.  Back in the 1980s, when Republicans were winning most presidential elections and controlled the administrative agencies, conservative justice, led by Antonin Scalia, liked the way that the administrative agencies were interpreting the statutes in a pro-business way.  As such, they established Chevron deference — a rule that, as long as the agency was reasonably interpreting the statute, courts should defer to that interpretation.  There was always some pushback to this rule — a belief that it was the job of the courts to interpret the law and courts should not be deferring to a “wrong” interpretation of the law.  But, of course, another big issue has been that Democrats are now winning elections.  As such, the challenged interpretations in recent years have been less favorable to conservatives.  And conservatives generally do not like a rule that empowers administrative agencies.  So, we have seen the Federalist Society (and their handpicked judges) chipping away at Chevron deference.  For the most part, the liberal members of the Supreme Court have been able to stave off the end of Chevron by conceding to the conservative interpretation of various statutes and simply agreeing that the agency’s interpretation was not reasonable.  But like Roe before it, unless there are a couple of vacancies to fill, the demise of Chevron seems inevitable.  It it’s not this case, there will be another case next term or the term after that.

Moore is technically a tax case, but it is a big one.  The original text of the Constitution allowed Congress to tax imports and impose excise taxes, but otherwise any “direct tax” had to be apportioned among the states.  This provision caused problems when Congress attempted to impose an income tax, but that was cured by the Sixteenth Amendment.  One of the provisions of the 2017 Trump tax cuts (in an effort to make the net impact on the deficit smaller) was a provision imposing a “repatriation charge” on foreign earnings of U.S. companies.    The issue is whether this charge qualifies as an tax on “income” (permissible) or something else (not permissible).  As with other cases this term, this ruling could be very narrow or it could be very broad with significant impact on future policy.

Jarkesy, like Loper, is a revisit to one of the conservatives favorite issues — the nondelegation doctrine.  Here, it is raised in a somewhat different context.  It normally involves a claim that the legislature improperly delegated legislative power to an executive agency.  Here, the claim involves a delegation of judicial power — allowing administrative adjudication of potential penalties for violation of regulations (here the Securities and Exchange Commission).  One of the key features of the administrative state is administrative law judges initially adjudicating disputes of this type (with judicial review available at later stages of the process).

The last big case currently on the docket is Purdue Pharma.  The short version of this case is that Purdue Pharma is mostly owned and run by one family.  One of the medicines that Purdue Pharma produces is oxycontin, and Purdue Pharma aggressively promoted oxycontin to doctors.  There is now litigation against Purdue Pharma which alleges that their marketing went beyond what is proper and that Purdue Pharma should be liable for the negative impact that oxycontin has had due to its highly addictive nature, and that it should never have been promoted as a broad-use pain control medication.   Purdue Pharma, facing extensive potential liability, has sought bankruptcy protection.  As part of the bankruptcy plan put forth in the bankruptcy court, the proposal would also extinguish any liability of the family that controls Purdue Pharma.  Now, there are a lot of legal reasons why, even without this bankruptcy plan, it will be difficult for anybody to prove that the family is liable (rather than the liability being entirely the corporation’s), but this plan would cut those arguments off and preclude any attempt to hold the family liable.  The legal issue is whether it is permissible to use bankruptcy proceedings to cut off the liability of somebody other than the debtor from claims made by third parties (especially when those third parties are not part of the bankruptcy proceedings involving the debtor).  Aside from the legal arguments that this proposed plan is an abuse of the bankruptcy code, there is the political aspects of this case involving a major public health crisis generated by the greed of certain individuals who are using the corporate structure and bankruptcy to avoid personal liability after having extracted large profits from the business (sort of resembling the history of a once and future Republican nominee for president except even morally worse).

Besides these five cases, there are four other cases pending that still need an argument date.  With six argument dates in the December argument session (which technically begins on November 27), it is possible that all of these cases will be heard in that session.  Or, some of the cases could go to the January session along with the cases that will be accepted in early October.  How many of these cases go in December could depend on how many cases are accepted for review over the next four weeks.   If there are a large number of cases added to the docket, it is possible that all of these cases are heard in December.  On the other hand, if the Supreme Court does not add many cases, some of these cases will be held until January.

Next week, we will pull out our foggy crystal balls and look at the cases that are waiting for  a decision on whether they will be added to the docket.